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Monday, May 12, 2008

NIFS Sex Sting Target Fights Back

A local doctor who was ensnared in a sex sting conducted by an off duty police officer at the National Institute for Fitness and Sports (NIFS) is suing the City of Indianapolis, the police officer and NIFS in U.S. federal district court for the Southern District of Indiana for false arrest, invasion of privacy and violating his constitutional right to be free from unreasonable seaches and seizures (Cause No. 1:08-CV-0002-DFH-JMS). The suit stems from the physician's arrest on January 9, 2006 at NIFS, where he was a member, by an Indianapolis police officer, Joshua Shaugnessy. Shaughnessy arrested the physician for public indecency. The physician pleaded not guilty to the offense, and Marion Superior Court Judge Barbara Collins directed a verdict in favor of the physician after concluding the state's evidence against the physician was insufficient to support a finding of guilt.

According to the suit, NIFS employed the services of Shaughnessy as an undercover security officer to combat alleged sexual activity which was taking place in the men's shower rooms and other areas within NIFS with the cooperation of the Indianapolis police department. The suit claims that a manager at NIFS, Jerry Taylor, profiled certain NIFS patrons as suspicious (i.e, they were suspected of being gay) and had Shaughnessy focus his undercover efforts on these suspicious patrons. To nab the suspects, the suit alleges that Shaughnessy essentially engaged in voyeurism. "Joshua Shaugnessy's investigative techniques while working at the NIFS facility included peering into shower stalls while men showered, without the advance knowledge or consent of the men showing," the suit reads. It alleges that Shaughnessy "had neither probable cause nor reasonable suspicion to believe that the occupants of the shower stalls were associated with criminal activity." Numerous male patrons of NIFS were arrested by Shaughnessy for public indecency using this technique but were later acquitted of the crime.

In the physician's case, Shaughnessy claimed to have observed him "exposing his genitals and touching his genitals in a shower stall inside the shower room of the NIFS facility on January 9, 2006." The physician complains that Shaughnessy "looked repeatedly into a shower stall he occupied" without his advance knowledge or consent. After he finished his shower, Shaughnessy placed the physician in physical custody, handcuffed him and placed him in an area of the facility where he could be observed by other patrons. The physician's suit complains that Indianapolis police on two separate occasions arrested him and took him into physical custody for the prosecution of this single charge of public indecency. The physician complains that he has suffered financial harm, mental distress and damage to his reputation and career.

When I first read about these arrests at NIFS as a result of this sex sting, I assumed the arrestees were engaging in inappropriate acts in view of other patrons. As it turns out, the arrestees were actually in individual shower stalls. If the complaint describes his investigative technique accurately, he had to snoop on patrons while they were alone in a shower stall to observe their actions. Is it possible to take a shower without exposing your genitals or touching them? I'm curious what the undercover police officer would have done if he had been met by a blow to the face while peering into the shower stall of one of these patrons. Would it have been assault on a police officer or self defense?

That's YOUR Mayor Ballard, Advance Indiana and Marion County Republicans! He could have put this officer on the street to prevent and investigate homicides, but he had private shower stalls to peer into.

I'm a member of NIFS, as are many of my friends, and none of us have NEVER seen anything inappropriate, except for some overweight guys walking around without towels. That's not illegal, just a bit disturbing.

You have my apology. I thought the lawsuit was against the city, which I thought would require that the city's employee acted in the scope of his employment. Does that cover independent security jobs? If so, whoever is the mayor needs to keep IMPD from doing side jobs. Otherwise, we'll be getting sued in cases like this where IMPD doesn't have supervisory control because they don't oversee or critique the reports, investigations, etc.

Also, I'm getting discredited because of an icon? Gary, at least you counter with correcting facts. Bully to you, sir.

I moved to Indianapolis in 1986. Shortly thereafter a man was arrested at Glendale Mall for just such a similar style incident. The officer there peered over the stall wall which had been lowered so that illegal acitivity could be observed. According to the man who was arrested he was "cleaning" his ass and exited the stall, and restroom only to be arrested half an hour later as he and his company left the mall. This incident combined with several others makes most gay men pause and think do I really need to go to the restroom so bad as to imperil my liberty. Thats what's wrong with homophobic America. Those that use the restroom, shower stall or not to engage in sex are many times married men who seek out the thrill encoutner and they stand more to lose than the average gay man who really may find public sex as intolerable as the homophobic people. Public sex is nasty and yes it needs to be halted. But, at what price are we willing to pay. Arrest all who utilize the facility through abuse of your power? I hope we find a decent solution. The ones we all see are the worse ones.

The city is a named defendant in the suit. The suit contends the undercover investigation was organized with the cooperation of all the named defendants. The suit also contends the police officer acted in accordance with the established customs and procedures of the police department.

It sounds like Brizzi's office dropped the ball again. A cursory review of the file would have revealed that these charges should not have been filed in the first place. Yet his office not only filed charges but were willing to take them all the way to trial. It's a shame prosecutors are cloaked with such legal immunity.

Anyone who has dealt with Brizzi's office knows this is typical. They do a poor job of charging people and then do not want to admit mistakes and dismiss cases.

I'm a Republican, but I find Brizzi's approach to leaving charges against people when his office has no chance of winning the case, to be morally and ethically reprehensible. I will not support his re-election under any circumstance.

I have a mentally disabled cousin who was sitting in a park in Terre Haute a few years back when an undercover cop approached him and solicited sex for money from him. He was arrested, handcuffed and taken into custody. He and bunch of other guys wound up with their pictures on the front page of the newspaper. When the prosecutor listened to the recording of the undercover officer's conversation with my cousin, he promptly dismissed the charges. The problem with these types of arrests when they are made in error is that a person's reputation is greatly harmed, even if they are ultimately found innocent of the crime.

Now that cops in some areas are actually making a pretty decent wage, they had best make damn sure they are following the law. IMPD officers will be making $60K after three years (they get this around 2010) + take home vehicle worth $7,000 + over-time at 1.5x the hourly pay rate + off-duty if they choose to work. Officers, you now have large enough paychecks that garnishments will be forthcoming if you don't be careful. You may think that "oh, the city will settle," but what if the person suing doesn't want to settle with the city? What if they want you to be personally "punished" by your illegal arrest?

I also assumed that these arrests at NIFS were folks engaging in behaviors in public. One case I heard about had a gun naked in a hot tub, fully erect penis..sickening if you ask me. Why doesn't NIFS just make people wear clothing? I mean is it that important to sit nude in a sauna or hot tub?

If so, whoever is the mayor needs to keep IMPD from doing side jobs. Otherwise, we'll be getting sued in cases like this where IMPD doesn't have supervisory control because they don't oversee or critique the reports, investigations, etc.

The city is still liable, but they also have rules for off-duty work. If you want to ban off-duty, get ready for higher taxes to hire more officers, or paying these same officers working more the over-time rate.

If Peterson had paid the police a decent wage, they wouldn't have had to work part-time security jobs.

Give me a break. IPD topped out around $48K. They also got unlimited use of a free company car, worth anywhere from $5,000 to $7,000 or more, depending on the usage. So now we are at $53K/year, based on 40 hours week. So you factor in over-time, you could easily see cops being paid wages and benefits of $60K/year. This does not even include that some of the officers get discount housing at some apartment complexes. Sorry, but I worked for a smaller LE agency and made $42K/year, no take home car. I had a decent enough life on that alone. If you can't make it on $60K/year, you have spending issues just like the rest of the folks out there.

Like I said before, the cops are making some good money now. They had best cautious about their arrest. Cops are no longer "poor." They have money. I would even suggest hitting up the FOP about liability insurance.

AI, I totally agree, though I would note that your cousin was lucky. He was dealing with an ethical, responsible prosecutor.

If those charges would have happened in Marion County, they would have been left pending against your cousin for several months. Then, possibly, the day before trial, the charges would have been dismissed. I know an attorney who had video footage of his client somewhere else during the "crime." Brizzi's office still wouldn't drop the charges, until the day before trial.

This physician has my sympathies. It is unfortunate that while our justice system presumes "innocence until proven guilty," most people really don't believe it, no matter what they say. I served on the jury in a murder trial in which the prosecutor specifically went over this issue and all the jurors agreed, oh, yes, the defendant is innocent until proven guilty. It became obvious during discussions, however, that even though they intellectually agreed with the concept, in reality most of the jurors believed that the person wouldn't have been arrested if he hadn't done the deed. I was one of the few who truly believed the defendant was innocent until it was PROVEN to me that he had done it--not because I'm anything special, but because I have an authority problem.

I would have no problems with having this gentleman as my physician even if he had been engaging in sex in the shower stall. Two completely separate issues, as far as I am concerned. I hope he wins his case.

This sort of behavior has been happening in NIFS for years. Yesterday I walked in on two men having a "fun feel" in a dark suana (i.e. lights off). I've never seen this sort of behavior in the showers, however it is common knowledge it happens all the time in the hot tub.

Check your facts in this discussion. No, the officer involved was not working part-time security. He was, in fact, on-duty working for the police department. Rather than rely on only the "facts" as reported by a defendant in search of a cash payout, you shouuld also read the arrest report which is also public information. If you had researched, you would also realize that alot of the allegations you site from the federal lawsuit do not hold water. For example, the defendant was charged twice (but only arrested once) because the initial charges were dropped due to a technical error and then refiled. This is common practice in Marion County. A judge again found probable cause (for a second time), a warrant was issued, and I believe the defendant then turned himself in. If you'd read the arrest report (again- public information), you'd also realize that the actions described were visible because the defendant left his curtain open so that others could see what he was doing. Rather than quote one side of the story, you might want to research. As a side note, I am familiar with this officer's work and know him. He has a history of fairness and treating people of all creeds with equality. He has worked worked with gay co-workers, volunteered to work for gay supervisors, and has friends who are gay. I am quite sure these arrests had nothing to do with someone's lifestyle choices but everything to do with criminal actions observed by the officer, who takes pride in honesty and integrity. This case has more to do with the previously mentioned judge finding nearly every defendant in these type cases not guilty, regardless of the facts. I'd encourage you to check the facts as reported in the arrest report and reevaluate your understanding of the case before slandering an officer with a good history of working for our city.

Indy said, "If you had researched, you would also realize that alot of the allegations you site from the federal lawsuit do not hold water. For example, the defendant was charged twice (but only arrested once) because the initial charges were dropped due to a technical error and then refiled. This is common practice in Marion County."

The accused was arrested twice. Once at NIFS in a very public manner so that other club members could view him in handcuffs. The second arrest took place, without warning, in his office while he was treating a patient. The second arrest maximized the potential professional embarrassment among his colleagues. His attorney told him he didn't have to go through the booking process the second time. He was stunned when the police came into his office and placed him in handcuffs and arrested him a second time.

Advance indiana said "The accused was arrested twice. Once at NIFS in a very public manner so that other club members could view him in handcuffs."

He was arrested in the most non-embarassing way possible. If you'd talked to anyone present during the trial, you would have found that the arresting officer didn't put the accused in handcuffs. He didn't walk him out of the business in handcuffs or even put him in cuffs once outside. He was only put in cuffs a minute or two before he was transported for processing.

I don't know anyone who knows anything about his alleged "second arrest" when he had an outstanding warrant. But considering the facts from his first arrest have been so wrongly misstated I have serious doubts about these facts as well.

Incidentally, the facts in trial were not that the officer "peered" into the accused's shower. The accused instead left his shower curtain open so that the officer could easily see inside from bout 4-5 feet away. These facts make the case very different than reported and distinguishes it from cases like Chubb v. State.

Even if you believe the shower stall is still a private space even though the accused was engaging in such activity in plain view, at the very least the accused in this case was guilty of "C" misdemeanor public indecency by conducting himself so that it was easily visible to anyone else.

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